Bragorgos v. Chao

STEVEN BRAGORGOS, Plaintiff,v.ELAINE CHAO, in her capacity as SECRETARY OF TRANSPORTATION, Defendant.

ORDER

LARRY
R. HICKS UNITED STATES DISTRICT JUDGE

Before
the court is defendant Elaine Chao's
(“Chao”), in her capacity as Secretary of the
United States Department of Transportation
(“DOT”), motion to dismiss. ECF No. 11. Plaintiff
Steven Bragorgos (“Bragorgos”) filed an
opposition (ECF No. 14) to which Chao replied (ECF No. 18).

I.
Facts and Procedural Background

On or
about November 30, 2014, Bragorgos was hired by the DOT to
work in the Federal Highway Administration as a Finance
Manager in Carson City, Nevada. Prior to working with the
DOT, Bragorgos served active duty in the United States Army
Reserve for over twenty years. During that time, Bragorgos
suffered several physical and mental injuries which left him
partially disabled. DOT allegedly knew of Bragorgos's
disability at the time he was hired.

For the
next several years, Bragorgos allegedly performed his job
satisfactorily and received three satisfactory job
performance evaluations. Beginning in early 2016,
Bragorgos's disabilities intensified culminating in a
request for accommodation from the DOT in July 2016. However,
Bragorgos alleges that DOT did not provide any accommodation
for his disabilities. Instead, on August 8, 2016, Bragorgos
was relieved of his supervisory position as a Finance Manager
and given duties that he could not easily perform due to his
disability. In October 2016, Bragorgos filed an EEOC
complaint alleging discrimination based on his age and
disability. Then, on or about December 7, 2016, Bragorgos was
denied a step increase and given a notice that his
performance was no longer satisfactory. He was subsequently
placed on a Performance Improvement Plan in January 2017. At
the time he was removed as Finance Manager, given new duties
that he allegedly could not perform, denied a step increase,
and placed on the performance plan, Bragorgos was 53 years
old.

Defendant
Chao seeks dismissal pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure for failure to state a legally
cognizable cause of action. See Fed. R. Civ. P.
12(b)(6) (stating that a party may file a motion to dismiss
for “failure to state a claim upon which relief can be
granted[.]”). To survive a motion to dismiss for
failure to state a claim, a complaint must satisfy the notice
pleading standard of Rule 8(a)(2) of the Federal Rules of
Civil Procedure. See Mendiondo v. Centinela Hosp. Med.
Ctr., 521 F.3d 1097, 1103 (9th Cir. 2008). Under Rule
8(a)(2), a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). Rule 8(a)(2) does not
require detailed factual allegations; however, a pleading
that offers only “‘labels and conclusions' or
‘a formulaic recitation of the elements of a cause of
action'” is insufficient and fails to meet this
broad pleading standard. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)).

To
sufficiently allege a claim under Rule 8(a)(2), viewed within
the context of a Rule 12(b)(6) motion to dismiss, a complaint
must “contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Id. (quoting Twombly,
550 U.S. at 570). A claim has facial plausibility when the
pleaded factual content allows the court to draw the
reasonable inference, based on the court's judicial
experience and common sense, that the defendant is liable for
the alleged misconduct. See Id. at 678-679 (stating
that “[t]he plausibility standard is not akin to a
probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully. Where a
complaint pleads facts that are merely consistent with a
defendant's liability, it stops short of the line between
possibility and plausibility of entitlement to
relief.”) (internal quotation marks and citations
omitted). Further, in reviewing a motion to dismiss, the
court accepts the factual allegations in the complaint as
true. Id. However, bare assertions in a complaint
amounting “to nothing more than a formulaic recitation
of the elements of a . . . claim . . . are not entitled to an
assumption of truth.” Moss v. U.S. Secret
Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting
Iqbal, 556 U.S. at 698) (internal quotation marks
omitted). The court discounts these allegations because
“they do nothing more than state a legal
conclusion-even if that conclusion is cast in the form of a
factual allegation.” Id. “In sum, for a
complaint to survive a motion to dismiss, the non-conclusory
‘factual content, ' and reasonable inferences from
that content, must be plausibly suggestive of a claim
entitling the plaintiff to relief.” Id.

III.
Discussion

In her
motion to dismiss, Chao contends that all four causes of
action fail to state a claim upon which relief can be
granted. See ECF No. 11. Bragorgos concedes in his
opposition that his first cause of action for a violation of
the ADEA and third cause of action for a violation of the ADA
should be dismissed for failure to state a claim.
See ECF No. 14, p. 12. Therefore, the court shall
only address Bragorgos's claims for a violation of the
Rehabilitation Act and for a Title VII hostile working
environment claim.

A.
Rehabilitation Act

In her
motion to dismiss, Chao contends that Bragorgos has failed to
exhaust his administrative remedies related to his
Rehabilitation Act claim and therefore, the court is without
jurisdiction over this claim. See ECF No. 11. As
addressed below, the court disagrees and finds that Bragorgos
has sufficiently exhausted his administrative remedies as to
this claim.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The
Rehabilitation Act, codified at 29 U.S.C. &sect; 701 et
seq., prohibits discrimination in employment on the
basis of an employee&#39;s disability. In order for a
district court to have subject matter jurisdiction over a
claim under the Rehabilitation Act, a plaintiff must have
exhausted all available administrative remedies. See
B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1099 (9th
Cir. 2002); see also, Bullock v. Berrien, 688 F.3d
613, 616 (9th Cir. 2012). To exhaust all administrative
remedies, a plaintiff must timely file a charge with the EEOC
identifying the alleged discrimination. Id.; see
also, Vasquez v. County of Los Angeles, 349 F.3d 634,
644 (9th Cir. 2004). Generally, allegations of discrimination
not included in the administrative charge &ldquo;may not be
considered by a federal court.&rdquo; Id. at 1100.
(quoting Green v. Los Angeles County Superintendent of
Schs., 883 F.2d 1472, 1475-76 (9th Cir. 1989). However,
a federal court's subject matter jurisdiction extends
over all allegations of discrimination that fall within the
scope of the EEOC charge and are thus “like or
reasonably related to the allegations ...

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